Robert Smith K.C.  and Matthew Donkin K.C., on behalf of the Director of Public Prosecutions, have successfully appealed to the Supreme Court the decision of the Court of Appeal in R v Sheikh and others.

On 27 July the Supreme Court delivered judgment in R v Sheikh and others, setting aside the judgment of the Court of Appeal and providing guidance on the statutory construction of section 5 (1) (d) (iii) of the Domestic Violence, Crime and Victims Act 2004, as amended. The defendants were convicted at the end of their trial before Lambert J and a jury at Leeds Crown Court on 18 December 2023 of offences of causing or allowing serious physical harm to a vulnerable adult contrary to section 5 of the Act.

The case involved complex expert medical evidence and connected charges of conspiracy and attempting to pervert the course of public justice in respect of which the defendants were also convicted. The victim suffered serious and life changing injuries to the brain caused by hypoglycaemia as a result of the unlawful and deliberate administration of the drug glimepiride (an anti-diabetic agent) by a member of the household. She had already suffered, some days beforehand, serious physical harm in the form of inflicted caustic burns. The issue for the court, at trial and on appeal to both courts, was whether the fact that the administration of a quantity of an anti-diabetic agent was “utterly different” to the antecedent burn injuries meant that the prosecution had failed to prove that the unlawful act of administering the anti-diabetic agent “occurred in circumstances of the kind that the defendant foresaw or ought to have foreseen” [section 5 (1) (d) (iii)]. The prosecution relied upon the antecedent burn injuries for the purposes of proving that the defendants were aware of a significant risk of serious physical harm being caused to the victim [section 5 (1) (d) (i)]. None of them had taken any step to protect the victim from that risk [section 5 (1) (d) (ii)]. The trial Judge ruled against the defence submissions that the case should be withdrawn from the jury on the ground that no reasonable jury could find that the act of administering glimepiride could be proved to have been foreseen. 

The Court of Appeal allowed the defendants’ appeal [2025] EWCA Crim 38] and concluded that the defence submissions should have succeeded and that Lambert J was in error. The Court concluded [§41 of the judgment] that the act of administering glimepiride was “so utterly different” to the earlier infliction of caustic burns that no reasonable jury could have found that actual or constructive foresight of the circumstances in which the drug was administered could be proved. 

The Supreme Court concluded that the trial Judge was correct and that the Court of Appeal fell into error since it was not the “act” which had to be proved to have been foreseen, but the circumstances and that the jury was required to consider all the circumstances, of which the means by which serious bodily harm was inflicted was only one. The Court of Appeal’s judgment was set aside and the convictions restored. The Supreme Court’s decision can be seen and downloaded from the Supreme Court website, as can the recordings of the submissions made by Robert and Matthew, along with summaries of the case.

R v Sheikh and others (Respondents) – UK Supreme Court  

Authors

Robert Smith KC

Call 1971 | Silk 1986

Matthew Donkin KC

Call 2004 | Silk 2026

Related areas

Crime

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